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Monday, March 14, 2011

There is a discussion in one of my facebook groups, on intellectual property rights (IPR) in the pharmaceuticals sector. One argument goes like this:

When a person invents a useful “1st-gadget” people will want to buy it and the inventor will Profit. Inevitably someone else will make a cheaper or an improved “gadget mark 2”. Now Everyone will want to buy the “mark 2” version and the person who invented the “1st-gadget will lose a portion of his expected profits unless he makes a more attractive gadget. Of course, there is nothing to stop “1st-gadget” inventor from improving on “gadget mark 2” and start selling “gadget mark 3”. In this way the world progresses and life gets better and easier for us all.

Progress depends on what happens after the“1st-gadget” is invented. The “1st-gadget” inventor is not obliged to share this invention to “improve the world”. No one can force him/her to share the idea. He could rightfully keep it to himself. However, if he reveals this knowledge to the world, then others may act upon that knowledge. Will people be willing to share knowledge if others are able to make a bigger profit from an Invention than they made? That depends on the motives of the inventor....

The “1st-gadget” inventor might wish to call on the government to use the law to prevent anyone else from copying or improving on his“1st-gadget”. He then has a patent on “1st-gadget” and nobody else may sell it or make improvements to it without paying him. One problem is that it is impossible to invent something without using ideas of others who Came before. Every inventor is building on ideas that came from an idea, sight, book, or invention that touched him. If this is so, how can the “1st gadget” inventor are permitted to restrict other people’s freedom to use his invention for further inventions? What about intellectual rights – the right to own the use of ideas? Do the rules for inventing “1st-gadget” apply to “1st-song”, “1st-fi lm” and “1st-computer program”? Haven’t these originated from other people’s ideas and inventions of music, musical instruments, photography, computers, and programs? Would there be more harmony and less Aggression, more co-operative spirit and fewer disputes, without patents?

A number of good ideas and points above. But there are a number of faulty logic as well. Let me enumerate them.

1. An IPR like patent is granted on each specific invention. There are 1,000 composers of 1,000 different rock songs, so there are 1,000 copyright holders here. No one can claim that another band's rock song is also their invention, and no one has a monopoly on the rock songs category; instead, there are 1,000 "mini-monopolies" here.

2. People want a cheap but comfortable sedan, so Toyota invented Vios, Hyundai invented Getz, Honda invented City, and many other car manufacturers (Ford, Isuzu, Daewoo, Mazda, GM, Cherry, Tata, etc.) have their own invention of a cheap but comfortable car. There is no monopoly of a "people's car." Rather, there are dozens of mini-monopolies on the cheap and comfortable car category. Then there are dozens of mini-monopolies too, on the 2.0 to 2.5 engine displacement car category, on the SUV category, and so on. There is no industry monopoly.

3. People want a drug against prostate cancer (or breast cancer and all other cancer types). Pharma A invented a drug using molecules from tropical herbs, Pharma B invented a drug using molecules from temperate herbs, Pharma C invented a drug using molecules from sea shells, Pharma D invented a drug using molecules from big fishes like barracuda, sharks and blue marlin, Pharma E invented a drug using molecules from wild animals, and so on. No one has a monopoly on anti-prostate cancer drug. Rather, there are dozens of mini-monopolies and patents on anti-prostate cancer drugs.

4. Private property is private property, it can never be national or collective property, unless the inventor will voluntarily share his invention (a drug molecule, a song, a poem, a business software, etc.) to others. Or if he thinks that the cost of enforcement is much larger than the benefit of going through it. If we say that al IPR shd be confiscated, that's coercion. Let inventors decide whether they want their invention to be shared to all or be protected by IPR laws (patent, trademark, copyright, etc.).

5. Not all lawyers and players in the pharma sector are pro-IPR. Those working in innovator pharma companies (the multinationals) are generally pro-IPR. Those who work in generic pharma are, to some extent, anti-IPR, citing TRIPS flexibilities. Then there are also other NGOs, media and academics who argue on "patients over patents", "people over profit", "health is a right" arguments. The Cheaper Medicines Law (RA 9502) is generally an anti-IPR law for institutionalizing IPR confiscation via compulsory licensing, parallel importation, government use, and so on, with riders like drug price control provisions.
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